Several months after a European Union memo discussing the ACTA Internet chapter leaked, the actual chapter itself has now leaked. First covered by PC World, the new leak fully confirms the earlier reports and mirrors the language found in the EU memo. This is the chapter that required non-disclosure agreements last fall.

The contents are not particulary surprising given the earlier leaks, but there are three crucial elements: notice-and-takedown, anti-circumvention rules, and ISP liability/three strikes. Notice-and-Takedown

The notice-and-takedown provision, which is a pre-requisite for intermediary safe harbour from liability, requires:

an online service provider expeditiously removing or disabling access to material or activity, upon receipt of legally sufficient notice of alleged infringement, and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of a mistake or misidentification. except that the provisions of (II) shall not be applied to the extent that the online service provider is acting solely as a conduit for transmissions through its system or network.

This would represent a change in Canadian law. Both prior copyright reform bills (C-60 and C-61) established notice-and-notice systems, rather than notice-and-takedown. There is currently an informal agreement to use notice-and-notice, which has proven effective (the Entertainment Software Association of Canada told the Liberal copyright roundtable earlier this month that 71% of subscribers who receive a notice do not repost the content within a week). ACTA would trump domestic law and the current Canadian business practice.

Anti-Circumvention

The anti-circumvention provisions are even more problematic as they effectively represent a renegotiation of the WIPO Internet treaties. The proposed ACTA provision states:

In implementing Article 11 of the WIPO Copyright Treaty and Article 18 of the WIPO Performances and Phonograms Treaty regarding adequate legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors, performers or producers of phonograms in connection with the exercise of their rights and that restrict unauthorized acts in respect of their works, performances, and phonograms, each Party shall provide civil remedies, as well as criminal penalties in appropriate cases of willful conduct that apply to:

(a) the unauthorized circumvention of an effective technological measure that controls access to a protected work, performance, or phonogram; and

(b) the manufacture, importation, or circulation of a technology, service, device, product, component, or part thereof, that is: marketed or primarily designed or produced for the purpose of circumventing an effective technological measure; or that has only a limited commercially significant purpose or use other than circumventing an effective technological measure. Article 11 of the WIPO Copyright Treaty (the anti-circumvention provision) was intentionally left broad in scope to allow for various implementations. The treaty merely requires "adequate legal protection and effective legal remedies against the circumvention of effective technological measures." It does not require access controls nor prohibitions on the manufacture or distribution of devices that can be used to circumvent. Indeed, when the DMCA was being discussed in the United States, Bruce Lehman, the Under-Secretary of State, acknowledged that the treaties could be implemented without a devices provision. Moreover, he stated that the DMCA would be used to pressure other countries into following the U.S. example:

When that legislation is in effect, then we will have a template that we can use, that the Trade Representative can use, that we in the Commerce Department can use, the State Department can use, when we are in negotiations with other governments to advise them as to what they need to do to implement their responsibilities in these treaties to provide effective remedies.

ACTA is therefore viewed as a mechanism to win the policy battle lost in Geneva in 1996. It would force countries like Canada to adopt the U.S. approach, even though the treaty explicitly envisioned other possibilities.

Three Strikes/Graduated Response

The draft chapter finally puts to rest the question of whether ACTA in its current form would establish a three strikes and you're out model. The USTR has recently emphatically stated that it does not establish a mandatory three strikes system. The draft reveals that this is correct, but the crucial word is mandatory. The draft U.S. chapter does require intermediaries to play a more aggressive role in policing their networks and the specific model cited is the three-strikes approach. In other words, the treaty may not specifically require three-strikes, but it clearly encourages it as the model to qualify as a safe harbour from liability. The specific provision, which is another pre-requisite for intermediary safe harbour from liability, states:

an online service provider adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights except that no Party may condition the limitations in subparagraph (a) on the online service provider's monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring;

And what is an example of a policy provided in ACTA? The treaty states:

An example of such a policy is providing for the termination in appropriate circumstances of subscriptions and accounts in the service provider's system or network of repeat infringers.

This leak shows how deceptive the USTR has been on this issue – on the one hand seeking to assure the public that there is no three-strikes and on the other specifically citing three strikes as its proposed policy model. Given the past U.S. history with anti-circumvention – which started with general language and now graduates to very specific requirements – there is little doubt that the same dynamic is at play with respect to three strikes.

From a process perspective, leaks coming out of the Mexico ACTA talks revealed that the ISP provisions were discussed, but the anti-circumvention provisions were not. This suggests that the anti-circumvention provisions from the U.S. are the only proposal currently on the table. According to a New Zealand official, there may be alternate proposals for the three-strikes model, all of which will presumably be discussed during the next round of negotiations in April in New Zealand.

Share this post

42 Comments

The Revolution against the Lobbyists is in full swing.It was once said that the revolution would not be televised, and here we are. Average people vs the Corporate Lobbyists. We know who has more money, but who has more man power?

“According to a New Zealand official, there may be alternate proposals for the three-strikes model, all of which will presumably be discussed during the next round of negotiations in April in New Zealand.”

What other sides will be discussed and by whom? I think the major players in presenting alternative proposals are very well known now. Why hasn’t anyone been given an invite to these talks or proposals? There are several very viable methods to move forward with respect to media and software. All that’s needed is industry to pick up on a few of these and the ad market will follow, but that’s not the case with industry.

The polarized positions, especially within industry (putting up a fight to warn off the inevitable) is what’s causing the problems. They have driven the reputation and financial state of this industry to near collapse, yet our governments still listen to these guys? Had they recognized the creative destruction process years ago, these industries would be in a boom right now, and creative talent would be way better off.

The SAC Proposal guys, is probably a good move in the direction on which the net seems to be going with media. It’s no longer “The Internet” it’s now a medium. We should be focused on making money off this, in more innovative ways than preserving an old business model of a system of control that is obsolete and can’t be achieved due to technological innovation. It’s a technological stalemate.

The 3 strikes policy is not economically sound at a time when the key phrase is turning to(efficiency in Government and debt reduction). If the public is going to pay for this, let the debate in Canada begin 🙂

Minor point of clarification for the international audienceJust a minor point of clarification for the international audience. It might not be a good idea to talk about seasons as in “last fall” as international people don’t immediately know when that is for you (in Canada?).

GrrrrrrWhat really chaffs my hide the is the fact that all the governments and negotiators have been going around flat out lying to their citizens. The betrayal is even worse than the deed and the deed was plenty bad.

SolutionI think the solution to the preoccupation with piracy is to offer to block all imports of American content into Canada. If it doesn’t come here it will be impossible to copy and make available. That would include all movies, music, tv shows etc. I would rather give that up than give up the country to draconian US style IP laws.

Why does Harper always just bend over and do what ever the US wants? He has become the perfect replacement for Tony Blair. We are paying his salary not the US he should be doing our bidding not theirs.

If you are going to self report
I’d suggest you self report yourself through your elected MP. Be open and frank about what you are telling them, and why. Don’t rant and rage, just tell them you are breaking the “law”.

I suspect a few thousand “reports” per MP might get talked about, in the right circles.

Broader than you thinkPeople are only thinking of media copyrights. ACTA’s corporate membership is a lot broader, including pharmaceutical and other biotechs, tech companies and the like. This is aimed at counterfeit physical devices, pharmaceuticals, genetically engineered organisms and a pretty much all of current tech.

Since China is not a partner to this agreement I suspect that primary motivation of this is to get China to toe the line on IP. Surely China is the primary hole in the IP dike as far as revenues go.

Bad NewsI’ll agree – since even the big corps said a couple days ago that they don’t want this, I have to say the big lobby for it HAS to be coming from Chinese influence. This is about as un-Canadian as it gets, and if this passes, it’s gonna be a MESS.

First: The WIPO treat doesn’t make any mention of criminal or civil measures for circumvention. A WIPO signatory could satisfy their obligations by including only civil penalties. This ACTA draft requires *criminal* penalties for those who circumvent digital restrictions (in addition to civil remedies)!

Second: As you mentioned in “Why Copyright?” – Bill C-61 could have been made reasonable by including the words “when used to infringing copyright” to the anti-circumvention clauses.. such wording would have satisfied WIPO while not unduly restricting research and technology… however section 5 of the ACTA document says the following:

“5. Each Party shall provide that a violation of a measure implementing paragraph (4) is a separate civil or criminal offense, independent of any infringement of copyright or related rights.”

Which seems to mean that signatory nations are not allowed to link circumvention to infringement! So a law that would ban “circumvention for the purposes of copyright infringement”, while satisfying WIPO would not be permissible under ACTA!

Broader than you think – maybe? Although I don’t disagree (or agree) with your assessment, the particular points in ACTA that raise such concern relate to the ACTA internet measures.
If they stuck with the anti-counterfeiting issues, there would be a lot less public uproar.

Even so, none of the issues seem to require the level of secrecy surrounding the negotiations. That is the biggest stickler, and until that is addressed we are essentially left with nothing but these leaks and empty assurances for information.

ACTA perhaps good?As it seams no ISP want this (honestly: 3 strikes and a customer is off for good). To them this means – loss of revenue, as pointed out earlier. With the copyright infringement rate as it is about 20-30% of all customers should be shutdown. 20-30% loss of revenue is a lot and the ISP that turn a blind side will be most likely praised by those 20-30% as they will get more customers. Furthermore, there will be no jailing for people as the three strike rule states that you will be barred from using Internet so no jail time needed. Now to my last point, even if the law is passed and even if the law is actually uphold (just like jay-walking) the people who infringe will easily encrypt their contents or devise other clever schemes to prevent them from being captured. It’s a mouse and cat game and we are the mouse (which means we will always try to be a step ahead).
So in conclusion:
1. This law will hurt ISP business
2. This law will most likely not be enforced
3. New, clever ways to share copyright material will emerge – which will sadly mean that NSA will have more trouble destinguishing between Johnny trying to get that game and a criminal trying to do something really bad.

Finally, Copyright is wrong but so is being overcharged for bundled with crap stuff. I will gladly pay $.99 for a song (given that I can sample the CD) or even 20$ for a game but being charged 19.99 for a CD which 3/20 songs are good (6$ per song) or a game that is 80$ is saying that the people who do this care about our money and not our enjoyment.

Realizing that this *rant* has gone for far too long. I must depart. Farewell and keep up the great work

Re: Freedom Fighter“Average people vs the Corporate Lobbyists. We know who has more money, but who has more man power?”

If you want to look at it in those terms consumers have more money and man power than the corps do. We also have the power to shape our own destiny with ACTA. We vote, big corps can do little but lobby. If we don’t like what we see, than the leading powers will be held accountable at the ballot box. Industry would face strong criticizing from within industry and possible boycott and drop off e-commerce at a time when we can’t afford.

I would hate to be in Van Loans seat right now. Public pressure is starting to intensify 200 fold since this broke.

Violation of human rights..if this becomes to be legal another violation of the human rights(because noone can be allowed to break your right of information) will be discussed and forces new processes which again will pay people for who ain’t involved in releasing such laws.
The word “Democracy” has become a lie. The only way to circumvent will be to boykott some paid online services that directly or not are involved in such “ACT”. Ironically for example the track “All along the watchtower” has been sold illegally by such a company for years before the hendrix family could do something.
Musicians at least should think about how getting their work to the public. So we can change it.
Please keep in mind that all that work of the past centuries is not kept alive over selling records (copies of content that someone else created but isn’t paid anymore because of death)! Music doesn’t stay alive by being paid for its copy. This is a lie. Music stays alive by being interpreted over and over live. Paid content results in a lot of artifical compressed noise which is the death of music. Recording is just a technical way to keep memories alive for you and others. If you pay it you don’t do so much for the musician but rather feed the troll(which is not the technician who records music) you know. But nevermind because even lots of people who make music ain’t aware of that fact.
Anyway such a copy of music seems to be more for a lot of people than music itself. This is the way it is paid. And it is easier to make a perfromance nowadays with playbacks and finished soundtracks. So it would be unfair to accuse only the companies for the new laws to come.
As you can see we all create a new world and make decisions where to pay and where not. And I as a musician gave you advice where you don’t have to bother… . In fact “Copy kills music” is a lie but “Selling copies kills music” is something to think about(by the way 44100hz is worse than 48000hz and causes technical problems).
So we will see in the future what music is really worth and wether it is going to survive into the future. 😉

“Broader than you think
People are only thinking of media copyrights. ACTA’s corporate membership is a lot broader, including pharmaceutical and other biotechs, tech companies and the like. This is aimed at counterfeit physical devices, pharmaceuticals, genetically engineered organisms and a pretty much all of current tech.”

Actually after the fact that we have been lied to that is the next scariest piece. Copy right is scary because American companies just make up new copy right law when ever they want and then people who can’t afford to fight back get crushed. The Murdoch Empires 6 words is enough for copy right or the music industries 3 chords is enough for copy right come to mind. But patents are far, far worse than copy rights. First almost every one now recognizes that patent law in the US has become a suicide pact crushing innovation. It has been shown that enforcing patents in the US now costs more in legal fees than is generated by patents. But worse yet is that every thing is patentable in the US including thought. If any medical company ever has to perform a genetic test on you they may very well patent the result and own the patent on your DNA. Think about that for a minute. That means they can clone you and many other horrible things and you don’t have a say in it. Generic drugs would be one of the first things targeted by this law. Would we need to let people die because some company wants to hold out for more money even if their patent is for some thing obvious or other wise not patentable under Canadian law. I can go on and on but patents are far more worrisome than copy rights.

Canadians shouls sign the petition.Please check out http://www.digital-copyright.ca/petition/acta/ for a petition against ACTA. We need to inform the politicians in the house when they come back as they aren’t paying attention. This isn’t parliament but a few bureaucrats that are moving this forward.

This make me really, really, realy madLast year our government had a public consultation on Copyright, and got far more responses than it could handle. An overwhelming majority of the responses, including my own, felt that circumvention of copy protection, and the distribution of tools which allow such circumvention, should not be illegal _EXCEPT_ in actual cases of copyright infringement.

What really irks me is that the prohibitions proposed to be put in place made by ACTA would render that point entirely null and void. And that Canada is even contemplating any sort of adoption of ACTA-like provisions after bothering to have held such a consultation enfuriates me to no end. What will it take for governments to realize that such prohibitions are roughly equivalent to the concept of thought crime, foster nothing but ill-will between consumers and publishers by locking consumers into particular vendors’ products and not giving them the freedom to use materials for themselves that they have legally acquired in ways that the consumer wants, and will _NOT_ alleviate any of the copyright infringement that goes on below the radar of enforceability?

I am compelled to conclude, unfortunately, that the copyright consultation held last year was nothing but a charade. A feeble, hand-waving gesture made by our government in an attempt to temporarily placate the public while something like ACTA was being privately considered instead. The utterly overwhelming level of disappointment that I feel at being forced to come to such conclusions is so great that I lack the capacity to even begin to verbalize it.

Director of Policy, ESAC“(the Entertainment Software Association of Canada told the Liberal copyright roundtable earlier this month that 71% of subscribers who receive a notice do not repost the content within a week).”

For the record, that’s not what I said during our presentation. Rather, what I said was of the 1.6 MILLION instances of infringement we detected over Canadian ISP networks in 2009 (primarily via BitTorrent and other p2p networks), in 29% of the cases the infringing video game files we still being shared 7 days after a notice had been sent to the ISP. While this supports the assertion that notice and notice has proven to be entirely ineffective almost one-third of the time, it does not support the assertion that it was effective the majority of the time as we do not know what prompted the remaining 71% to stop sharing the files (eg download may have simply completed and/or they stopped seeding).

Re: Jason J. KeeFrom what I’ve been hearing from American consumers who have received notices from their ISPs, usually they end up using proxy’s to download, switching to open bittorrent trackers which do not record the files hash, going to more private torrent sites that block out known industry IP’s, or even and most commonly using darknet type services such as rapidshare etc. Notice to Notice doesn’t work, nor will notice and take down.

Question for you, how much money are the members of ESAC getting from in Game sponsors compared to about 10 years ago? Anyone pick up a copy of Tigerwoods 2010 for consol gaming lately. Pizza Pizza, Subway ESPN all in sponsors of this game? I wonder if the portion of so called lost revenue from ESAC members is actually being made up by these in game sponsors. Shouldn’t the ESAC be focused on more in game and cloud software development rather than wasting their time in government lobby efforts around copyright?

Sorry – yes, you did choose focus on the 29% of notice recipients that put the content back up within a week. The inverse is obviously that 71% did not. I think that is a telling statistic and does suggest effectiveness. The Business Software Alliance has also acknowledged the effectiveness of notice-and-notice.

My own experience is that I receive queries from recipients every week about the implications of notices and I’m pretty certain that the alleged infringements stop after receiving the notice.

@Jason K

I find the prospect that users regularly turn to proxy servers to be highly unlikely. That might be true for a small percentage of sophisticated users, but the overwhelming majority of Internet users don’t know what a proxy is, much less how to use one.

Re; MGThe tech savvy ones are throwing in proxies very true, the majority of users are now on darknet. Interestingly enough artists themselves and their labels often post tracks to sites like rapidshare to service DJ’s. For music, it’s actually industry that’s pushing a lot of the rapidshare sites out. The submission by “Bittorrent” with respect to the net neutrality hearings did indicated this. Bittorrent overall use is down, but the emergence of darknet type services (which are extremely hard to track can and also be the reason why) is starting to become the norm now both within industry as far as servicing content on an industry to industry basis (that’s too big for e-mail), and by consumers.

Industry interferers with one, other ways of sharing media will pop up. It’s an integrated part of the marketplace and economy now and what the consumer wants. More in-depth independent study is needed at present to determine the economic impact of interfering with the current marketplace as far as filesharing and media sharing is concerned. While some area’s of industry are struggling due to innovation others are emerging and becoming more powerful, thus offsetting at lot of the “old” areas of industry that are dying out (the PRS for music study dated July 2009 indicating music industry numbers are up, and you reported on our numbers just a few weeks ago). Granted it’s not all about music, different industries are seeing examples of Creative Destruction at it’s best, IE in game sponsors, record turnouts at gigs, more consumer choice the list goes on. We should be benefiting from this rather than trying to shut it down or calling it wrong. I think any move towards a notice and takedown, or a 3 strikes policy will have far reaching effects on our economics than one realizes right now. Above all the economics of the situation needs to be fully understood and not from industry types who are competing for marketshare and market control.

Reg MG Continued…Personally I can’t for the life of me being having both IT and broadcasting backgrounds why the professionals in industry don’t see the potential for ad market revenue. If this was about money my theroy is that we wouldn’t be where we are today. It’s about control and market share. If we are truly to come up with a plan that is balanced and fair, the first step is to realize this, and look to see where the marketplace is going with respect to file sharing and build a market around it, and not towards those who refuse to move forward or over the past 10 years have driven a certain part of the entertainment industry in to the ground. The music industry needs to stop taking market advise from Metallica!

Pres. New Media Alliance of CanadaJason K and I work together so I thought I’d put my 2 cents in here. First of all one needs to look at the situation objectively.

Bittorrent in it’s CRTC submission to the public comments on net neutrality that the use of bittorrent is significantly down in Canada, but this could be due to darknet type services, and close nit private file sharing sites outside the realm of the trackable bittorrent programs and networks which was stated in their statement to the CRTC. The media industry is a fast pace industry that traditionally adapts to change quite quickly in the marketplace, and is strongly competitive. 10 years of diving head first into the ground, and screams for a TV Tax bail out is where we are today. Impressive! The ESAC fits into the media category now as well.

There has been no evidence that factors in darknet when looking at either the success of the notice to notice approach nor notice and takedown on either side of this debate because darknet is new in popularity and relatively hard to track with wide, closed and often private networks running the show. Jason K is right! It is largely being pushed by the independent sector by smaller labels and artists to service an industry that is no longer servicing itself let alone consumers properly! What’s going to happen to this sector of the industry if this is disrupted.

Bittorrent in its CRTC submission to the public comments on net neutrality that the use of bittorrent is significantly down in Canada, but this could be due to darknet type services, and close nit private file sharing sites outside the realm of the trackable bittorrent programs and networks which was stated in their statement to the CRTC. There has been no evidence that factors in darknet when looking at either the success of the notice to notice approach nor notice and takedown on either side of this debate because darknet is new and relatively hard to track with wide, closed and often private networks.

The report that came out by our Government back in 2007 with respect to finding some positive aspects of file sharing was backed up personally by a member of the UNCTAD quoting research and her findings suggested that there is a clear cycle of creative destruction within the music industry, and pointed to several independent sources to back up her hypothesis. Although the rise was not in sales, but within other sectors of the industry. A good example of how another industry adapted to creative destruction is the photofinishing industry which stood to lose significant amounts of capital and income from the changes to digital cameras and online photosharing sites. How are other non-entertainment industries going to be affected? Where are they on the side of innovation and what are the positive aspects in each industry that will be threatened by a 3 strikes policy? Everything is connected to this now, not just the media industry, and we need to fully and completely understand how this would effect our economic outlook as a whole.

Industry (an those with vested interests) are too polarized around the issue of copyright, they don’t see past shutting down file sharing or deterring this behavior all together in a bid to hang on to virtually undisputed marketshare until now, or even making file sharing a positive thing for industry (which includes Geist). File sharing has basically given a lot of small acts the ability to compete with the big ones. It leveled the playing field on all aspects from media funding, to sponsors to our audience, and put Canadian Content on the global stage in sales. This should be embraced!

In my personal experience artists don’t care about copyright, they care about their pay cheques. As long as that happens they’re fine. Consumers want to be able to do what they want with content how they want it, and are willing to pay for the media as long as they can do what they want with it. It’s simple, not complicated. The best way to bridge both so it’ll be fair is to seriously look at the SAC proposal. The “middleman” need to re-invent themselves big time and should not be considered owners and controllers of the global cultural content, rather beneficiaries of it.

An excellent example of where the ad market is going is to view one of the UFC fights, and how they embed the ads. They have a huge following globally in part due to file sharing. As Joe Rogan once said after the legal disclaimer on copyright, “there’s no stoppin the internet”. Might as well roll with it, and get the program with what the ad market is ready for.

Also the UFC undisputed console game is LOADED with in game sponsor material HUGE!

Chad S said:In my personal experience artists don’t care about copyright, they care about their pay cheques. As long as that happens they’re fine. Consumers want to be able to do what they want with content how they want it, and are willing to pay for the media as long as they can do what they want with it. It’s simple, not complicated. The best way to bridge both so it’ll be fair is to seriously look at the SAC proposal. The “middleman” need to re-invent themselves big time and should not be considered owners and controllers of the global cultural content, rather beneficiaries of it.